2016 International Institute for Democracy and Electoral Assistance

Transcription

1 Assessing the Performance of South Africa s Constitution Chapter 7. The performance of federalism Andrew Konstant and Khomotso Moshikaro 2016 International Institute for Democracy and Electoral Assistance This is an unedited extract from a report for International IDEA by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a Centre of the University of Johannesburg. An abridged version of the report is available for download as an International IDEA Discussion Paper: <

2 Chapter 7. The performance of federalism Andrew Konstant and Khomotso Moshikaro The purpose of this chapter is to evaluate the performance of the particular multi-level governance structure developed in the South African Constitution. The structure in question is complex: there are three spheres of national, provincial and local government (though local government is often divided into two spheres itself). All these layers of government are mandated by the Constitution to govern in a co-operative manner. The Constitution also allows for the recognition of the authority of traditional leadership which overlaps with these other spheres in certain respects. This chapter engages with the history of this multi-level governance structure which is rooted in the historic compromise that led to the constitutional settlement in South Africa. It also attempts to discern a number of more principled goals as to what the purpose of such a structure is. It then attempts to evaluate the actual performance of the multiple layers of government against these goals. The overall picture is one where the design of the Constitution has been given effect to: aspects of this design can be questioned as being overly complex (for instance, in relation to the division between district and local municipalities) and failing adequately to determine a clear locus of responsibility (such as in relation to concurrent competences and vagueness around exclusive competences) which reduces accountability. The existence of provincial and local spheres has enhanced democratic representivity though the participatory aspects of these structures need attention; at the same time, they often have been plagued by high-levels of inefficiency and been unable to meet their mandates to deliver on services Context and goals of the Constitution The goals that the Constitution intends to achieve in relation to multi-level governance can be divided into two main conceptual themes. The first is the goal in relation to what type of multi-level governance was envisioned by the drafters of the Constitution. In other words, the relevant question is to what extent was the democratic government to be decentralized. The second theme, which follows from the first, deals with the goals that such a form of multi-layered government was meant to achieve. Therefore, once the government structure is identified, what are the intended results of such a structure? The first theme will be dealt with in the section on institutional design and the second theme will be dealt with below. The Constitution of South Africa provides for three spheres of government national, provincial and local that operate in a cooperative, interdependent and interrelated manner. 1 To each of these institutions, the Constitution assigns certain powers and prerogatives. Furthermore, representatives in each of these institutions are independently elected by the citizens over whom they govern. In order to understand important aspects of the goals intended to be achieved by this structure, it is important to begin by assessing how this broad conception of decentralisation came about. When a new constitutional model for a democratic South Africa arose on the agenda in the early 1990s, the ANC and others in the freedom movement were deeply suspicious of the notion of a decentralised democratic government. The fear was that factions, especially the minority white Afrikaans population which held power during Apartheid, could concentrate in a particular region and create a fiefdom in which the vagaries of Apartheid could be continued. In other words, such regional autonomy was seen as a way in which to side-step majority rule. 2 Furthermore, the ANC appreciated the large developmental agenda that lay ahead for the new democratic government. This agenda included the fact that a majority of the population had suffered generations of oppression and neglect, an economy ravaged by sanctions and international isolation and many other problems that would be faced by the new democracy. The ANC believed that these problems could best be faced through the concentration of resources in the hands of a powerful central government. The most prominent parties in favour of a decentralised governmental system were the Nationalist Party (which represented the out-going white dominated regime), and the Inkatha Freedom Party (which was largely supported by the Zulu population in KwaZulu Natal). The National Party, previously in control of a strong central government, feared the potential that such a government in the hands of the majority black ANC would 1 Section 40(1) of the Constitution 2 Steytler and Mettler, 2001:

3 7. FEDERALISM exact retribution on the white minority and begin an era of white oppression. The goal for the National Party with respect to decentralisation was to impose constraints on the power of the central government given the uncertainties around which a newly elected government would govern. It was also potentially allow for its own assumption of the levers of power in provinces where it might have significant support. The IFP, on the other hand, whose supporters constituted a majority in the KwaZulu-Natal province, focused on the establishment of greater provincial autonomy in the hope that they could exercise a high level of independence, assume power in the province and not be under too much control from the central government. The birth of the multi-level system of government is more accurately located in the circumstances in which the transition was negotiated and these contrary positions were mediated. The breakthrough that brought the ANC and the National Party together and facilitated the drafting and passage of the Interim Constitution was the agreement to create a government of national unity in 1993 that would ensure a peaceful transition to democracy. The ANC and National Party agreed to share power between themselves without the creation of a multi-level system of government. In other words, the potential for shared rule as opposed to potential self-rule in a federal system was enough to pacify the concerns of the National Party and the ANC. An important factor surrounding this agreement, however, was the fact that two groups, the right wing Afrikaners and the Zulus, did not participate in the negotiations until the last minute and therefore did not feature in the governance framework that had been agreed. As a result, these groups strongly opposed the agreement and stood as potential hurdles to its successful implementation/realisation. The disaffected groups formed an allied front against a centralised government and walked out of the continuing negotiations for the democratic transition. Their demand was that the final Constitution should establish a federal democracy. Their resistance to the implementation of the agreement struck between the ANC and the National Party grew and persisted until it became clear that the priority must be to unify the parties in order to insure a successful democratic transition. In order to achieve this, a significant compromise was reached right towards the end of the negotiations. The ANC and National Party agreed to include in the final Constitution several provisions which resulted in the establishment of a government with multiple layers. The outcomes of these compromises were encapsulated in a series of constitutional principles that would condition the negotiation of the final constitution. 3 These stated that [g]overnment shall be structured at national, provincial and local levels (CPXVII); that constitutional amendments require the approval of the provinces, or their representatives in a provincially-constituted second house of parliament (CP XVIII); and that each level will have exclusive and concurrent powers (CPXIX). It also endorses a principle of subsidiarity, stating that the level at which decisions can be taken effectively shall be the level responsible and accountable (CP XXI). As such, despite the fact that the word federalism does not appear in the text of the final Constitution, the principle features of such a system had to be firmly embedded in it. 4 A further concession during the negotiation of the final Constitution was the retention of the traditional authority framework which had exercised significant power over a large portion of the black population before the introduction of democracy. The compromise was captured in Constitutional Principle XI which guaranteed that [t]he institution, status and role of traditional leadership, according to indigenous law, shall be recognised and protected in the Constitution. Indigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith. This principle was faithfully reflected in sections of the Constitution which recognises customary law and traditional leadership, provides for a role for traditional leadership in local government and provides for the creation of institutions such as the Provincial Houses of Traditional Leaders and the National Council of Traditional Leaders. The product of the negotiation was therefore a multi-layered system of government which included national, provincial, local and traditional spheres. While the Constitution made some effort to link the former three spheres together and assign to each an outline of their roles and relationships, it has little to say about how traditional leadership interacts with the others spheres. 3 These constitutional principles were used as measure to assess the compliance of the Final Constitution with the final agreement that brought about the democratic transition. 4 Simeon, 1998: 46. 3

4 ASSESSING THE PERFORMANCE OF SOUTH AFRICA S CONSTITUTION One could argue that the internal goals of the Constitution comprise an amalgam of the separate goals of each party to the negotiation. From the ANC s perspective, the goal was to achieve unity amongst those negotiating for the transition while maintaining sufficient power in the national government to achieve certain developmental goals. The National Party sought the same conciliatory objective as the ANC; however, its primary purpose was to limit the power of the national government and perhaps create greater autonomy for minorities concentrated in certain provinces. The IFP too pushed for decentralisation with the hope that with greater provincial autonomy, they would gain greater control of the region from which their largest support-base derived. Rightwing Afrikaans groups (which later formed into the Freedom Front party) also supported decentralisation with perhaps the hope that such a structure would allow for greater autonomy. This situation was recognised in the Certification judgment where the Court candidly remarks that the adoption of a multi-level government and the preservation of provincial autonomy were motivated by the need to encourage political formations which refused to participate in the transition process to change their minds and to support the transition to a new political order. 5 In summary, the historical context suggests that the main goal of establishing the multi-level government in the Constitution rested in political compromise between negotiating parties in order to ensure a peaceful transition (the peace-treaty abstract goal of the Constitution identified in Chapter 2. This serves to illustrate the difficulty in extrapolating further precise internal goals of the Constitution in this regard as the rationale for these structures, now that we have them, must go beyond simple political pragmatism. 6 To make further progress, we suggest that the process of compiling the internal goals of the Constitution with respect to multi-level government requires us to incorporate the objective goals of such a system in the theory around federalism. These goals may have been considered by those parties which favored a federal system of government during the negotiation and we do not assert that they were solely concerned with protecting their own interests without regard to wider constitutional goals; however, there is little evidence to indicate the main principled goals underlying the support for federalism. In turning to the theory of federalism, we are able to determine a full set of internal goals which may then be mapped on to the four Ginsburg criteria. 7 At its most abstract, the goal of creating a multi-tiered governance system in a country is so that the leaders of a country made up of disparate or somewhat heterogeneous groups can accomplish a set of objectives that is not feasible for any individual groups to accomplish independently. 8 This principle has been called subsidiarity and it forms the bedrock of federalism in decentralized systems. 9 It ensures that the national government plays a supportive role and only intervenes in governance when local governments are incapable of adequately acting on their own. 10 However, more specific goals can be extrapolated from the literature to create a normative theory of multi-level governance which the South African Constitution can be measured against. Federalism, it is claimed, generates better representation at more localised levels of government. In theory, mobile citizens congregate in particular jurisdictions which lead to local government better reflecting the collective preferences of these groups. A competitive element is added when a portion of these citizens are mobile and capable of moving to a jurisdiction which better represents their interests. This situation encourages local governments to operate more efficiently as well as to specialise. 11 However, even absent the presence of mobile citizens, the smaller jurisdictions enhance the weight of each individual voter and ensure that government at local level is more responsive to individual interests than at the national level. Beyond responsiveness, the expectation is that local government can be more effective as local decision-makers have a better grasp of the relevant local facts than actors at the national level. With the enhancement in efficiency, one can expect that corruption will decrease within local governments. Corrupt local leaders will not survive against the competition from more efficient neighboring jurisdictions. 12 Finally, local governments offer the opportunity for policy experimentation and innovation. Local governments may adopt different policies in relation to similar problems and this may offer insights into the success of each policy. Successful policies may then be adopted by other local governments or the national government. This process further enhances the 5 Para See Jackson, 2004 who characterizes the South African experience as such. 7 For a description of the Ginsburg criteria, please see chapter 1 of this report. 8 Riker and Follesdal, 1993: Halberstam, 2012: Halbertam, 2009: Bednar, 2011: Bednar, 2011: 272.

5 7. FEDERALISM effectiveness of governance across local governments. Benefits also arise in the event that a policy fails. The effect of a failed policy is only felt by provinces that have adopted that policy. In a decentralized system, this limits the extent of damage that flows from failed policies. 13 The aims of federalism can be used to argue to either devolve powers to lower levels of government or to concentrate greater powers in the national government. For example, governmental aims such as military security, economic growth and effective representation drive the direction of the concentration of power in different directions. On the one hand, military security is best achieved through command coordination which necessitates the centralisation of foreign policy and war-making powers. As a result, military security is best achieved in a federal union than a confederation or a loose alliance of states. 14 With respect to economic growth, the benefits of decentralisation that result in greater efficiency, effectiveness, or innovation all relate to factors necessary for economic prosperity. As a result, decentralised government should, in theory, lead to economic growth because competition between local authorities encourages policy experimentation and increased efficiency, supporting market growth and revenue collection. The same is true of political representation. A decentralised political or electoral system is known to enhance electoral participation. 15 The logic flows from the creation of voting districts with smaller populations in each district. With smaller populations, any one voter is more likely to be decisive. In theory, people are more likely to vote the more their vote matters. In conclusion, the history of the negotiations plays an important role in uncovering the intended goals of the Constitution s design of the federal structure. As will become clear later, these goals may have contributed to the manner in which decentralisation occurred. However, it must be acknowledged that objective goals exist when dealing with the notion of a federal system. It is equally relevant to measure the performance of a constitution which purports to establish a federal system of government against these goals. In summary, one can then list the goals of a federal system, if a little abstractly, as: The participants in the negotiated settlements that advocated for the inclusion of the federalism provisions in the Constitution had the goal of creating a check on centralised power in the form of greater autonomy for the provinces. The more objective goals of the federal system include greater efficiency and effectiveness, as well as political responsiveness and representation, in governance. Furthermore, a federal system is intended to reduce the level of corruption in government. The adherence to the principle of subsidiarity which ensures that decisions are taken by those institutions in a position that would best achieve the intended objective. The effective operation of the principle of subsidiarity rests on the mechanism the Constitution establishes for the division of decisionmaking prerogatives between the national, provincial and local levels of government. Following the description of the goals of the Constitution with respect to the establishment of a multi-level structure of government, the next section will discuss the actual constitutional design adopted in South Africa Constitutional design and tensions within it Institutional design of the multi-level governance system The Final Constitution established nine provinces. There was no effort made to align the borders of the provinces with the locations of tribal or ethnic groups in the country. There were both practical reasons (the migration of ethnic and tribal groups all over South Africa), and substantive reasons (the ANC s decision not to further the interest of any particular tribal or ethnic group) for the adoption of the new provincial borders. The Constitution furthermore created national, provincial and local governments which would govern in their respective boundaries. 13 Bednar, 2009: Bednar, 2009: Inman and Rubinfeld, 2000:

6 ASSESSING THE PERFORMANCE OF SOUTH AFRICA S CONSTITUTION Chapter 3 of the Constitution sets out a system of multi-level government, with national, provincial and local governments constituting spheres that are to be distinctive, interdependent and interrelated. 16 The focus of this chapter will be on the national and provincial governments though local government and traditional authorities will be addressed briefly. 17 Between these two levels, the division of powers is dealt with in the Constitution. This allocation of roles and responsibilities accords the national government broad legislative power to legislate on any matter except those contained in a short list of exclusive provincial powers (section 44(1); Schedule 5). Provinces also have the power to legislate on matters contained in a long list of concurrent powers (Schedule 4). These have been described as critical powers. 18 However, the central government may override provincial laws in a wide range of circumstances though each of these circumstances are subject to qualifications. In terms of section 146, in the case of a conflict, national law will prevail if it deals with a matter that provinces cannot effectively regulate on their own or if it is necessary for national security, economic unity, and the common market, the promotion of equal opportunity and equal access to government services, or the protection of the environment. Furthermore, even in areas that the provincial government may have exclusive jurisdiction over which to legislate, the national government may legislate when necessary to maintain security, economic unity, or national standards, or to prevent a province from harming others. Any other residual powers are vested in the national government. 19 These federal powers are wide in scope, but they are limited in that they must be linked to clear national purposes or to clear evidence of the negative effects of a province s actions on others in South Africa. In other words, national legislative authority does not enjoy absolute superiority. It must be justified using the criteria set out in the Constitution. The Constitutional Court in In Re: National Education Policy Bill No 83 of 1995, took the opportunity to articulate its understanding of the Constitution s federal design. Chaskalson CJ confirmed that both the national and provincial legislatures are free to legislate in areas of concurrent legislative competence. In cases where there is a genuine conflict between national and provincial legislation, legislation held not to prevail is not invalidated; it is subordinated and to the extent of the conflict rendered inoperative. 20 In other words, the subordinated legislation remains in force and has to be implemented to the extent that it is not inconsistent with the law that prevails. If the inconsistency falls away, the law would then have to be implemented in all respects. 21 The purpose of such a division of powers is that the national government can impose national norms and standards while allowing provinces to respond to their own particular needs. In other words, this division of responsibilities between national and provincial governments where they have shared competences requires that the national government establishes the policy-framework including the norms and standards applicable in that area, while the provincial and local government levels are responsible for the delivery of programmes. 22 As such, provinces hold the primary role in the system of delivery of nationally determined policies and programs. This division of powers offers a particular view of federalism with the national government responsible for the creation of the policy, and the provinces responsible for the policy s implementation. In a sense this contributes to the overarching internal goal of establishing a unitary state that also embraces diverse interests. Provinces also have the right to establish their own constitutions, subject to the Constitution itself. It is telling that no province governed by the ANC has attempted to adopt a constitution but KwaZulu-Natal under the IFP 23 and the Western Cape under the DA have exercised this power. The draft constitution created by the IFP in KwaZulu-Natal failed certification before the Constitutional Court as it deviated substantially from the national Constitution. 24 The Court described the provincial constitution as having improperly usurped national 16 Section 40 of the Constitution. In reality, local governments are typically divided into two-levels, districts and municipalities. These will be more fully discussed in the chapter dealing with local government. 17 The massive scope of this project has meant that we need to focus: we recognize that a fuller engagement with the performance of the local sphere of government and traditional authorities is needed. 18 Murray and Simeon, 2001: Section 44(2). 20 [1996] ZACC 3; 1996 (3) SA 289 para Ibid para Van Niekerk, 2012: The IFP held control over the province from 1994 to See Electoral Institute for Sustainable Democracy in Africa South Africa Election Updates available at [accessed on 21 March 2016]. 24 Certification of the Constitution of the Province of KwaZulu-Natal, (11) BCLR 1419 (CC).

7 7. FEDERALISM powers and as a result struck it down. 25 The DA s draft constitution for the Western Cape also failed to be certified in its first attempt. The Constitutional Court held that the draft constitution purported to alter the province s electoral system in contravention of the national Constitution. 26 Two other relatively minor deviations from the Constitution were found by the Court. The Western Cape legislature quickly passed an amended version of the draft provincial constitution which was then certified by the Court. 27 Further protection of provincial interests is given through the establishment of the National Council of Provinces (NCOP), acting as the second chamber of parliament. This institution is designed to represent the provincial interests in the national legislative process. Each province is represented in the NCOP by a ten-person delegation and each delegation includes ministers of provincial governments. When the NCOP considers national legislation directly affecting provinces, delegations vote as a single bloc, on instruction from their provincial legislatures, and a super-majority of two-thirds of the National Assembly members is required to overturn the NCOP s decisions. 28 On other matters, the NCOP members vote as individuals and a simple majority of the National Assembly can overrule them. 29 The best description of the multi-level governance federal system established by the Constitution is in the Certification Judgment. The Court states that the Constitution provides a form of multi-level governance that is characterised by cooperation as opposed to a competitive federalism. In other words, the drafters of the Constitution did not intend to create levels of government which vied with each other over exclusive jurisdiction. Rather, it was intended that each level government work with the other in order to best fulfil constitutional obligations. This principle has been titled as cooperative government and we turn to consider it in the next section. Cooperative government The concept of cooperative government requires the three spheres of government to function as a single, unified system, collaborating rather than competing. Section 41 of the Constitution lists a number of principles which undergird the notion of cooperative government. These principles, roughly, dictate that spheres of government must respect the constitutional status, institutions, powers, and functions of government in the other spheres; act in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and cooperate with each other in mutual trust and good faith through fostering friendly relations, ensuring communication and coordination, and avoiding taking their disputes to court. 30 They share responsibility for preserving the peace, the national unity, and the indivisibility of the Republic and for providing effective, transparent, accountable and coherent government for the Republic as a whole. 31 These principles could be distilled into a basic proposition. Cooperative government does not diminish the autonomy of any sphere of government. 32 It simply recognises the place of each within the entire structure of government and the need for the coordination between these units in order to ensure effective and efficient government. 33 Furthermore, these spheres should be regarded as distinct. Chaskalson CJ in Premier, Western Cape notes that the constitutional principles of cooperative government possess a two-fold purpose: (a) to enable our new democracy to develop a system of government that enables each sphere to work together in a coherent fashion; and (b) to allow each sphere of government to function relatively autonomously within the scope of its legislative competence KwaZulu Natal Certification para Certification of the Constitution of the Western Cape, (4) SA 795 (CC) 27 Certification of the amended text of the Constitution of the Western Cape, (1) SA 655 (CC) 28 Section 76 of the Constitution. 29 Section 75 of the Constitution. 30 The Constitution does however state that the Constitutional Court is the final arbiter of relationships between the three spheres. 31 Section 41; See also Premier, WC v President at para 50 where the Constitutional Court makes the statement that the distinctiveness of the spheres of government must be read in light of the founding provisions of the Constitution (section 1) which states that South Africa is one sovereign, democratic State. 32 First Certification judgment para Van Wyk v Uys NO 2002 (5) SA Premier, Western Cape v President of the Republic of South Africa and Another 1999 (3) SA 657 para 58. 7

8 ASSESSING THE PERFORMANCE OF SOUTH AFRICA S CONSTITUTION As part of the cooperative government framework, should the NCOP refuse to pass a bill that affects provincial powers, or proposes amendments to which the national assembly does not agree, the Constitution instructs that the bill must be sent to a mediation committee on which the NCOP and National Assembly each have nine representatives. 35 The mediation committee has no decision-making powers but is intended to negotiate a solution to the impasse that will be approved by both houses. As mentioned above, should agreement between the two houses not be reached, the National Assembly can override the objections of the NCOP with the support of two-thirds of its members. What may be distilled from the constitutional principles of cooperative government is that intergovernmental relations is placed at the heart of the South African federal system. In other words, the principle instruction to the distinct yet interdependent spheres of government is to make every reasonable effort to resolve any disputes through intergovernmental negotiations and to exhaust all other remedies before approaching the courts to have them resolved. 36 Therefore, if courts are not satisfied that such efforts have been made, they can refer the matter back to the respective governments. This feature of the federal system is present in both the legislative and executive branches at all levels of government. These spheres of governments are required to engage in a deliberative process in which they inform each other and consult with one another when matters of common interest are at stake. 37 The requirement to exhaust all consultative and conciliatory options before approaching the courts to resolve a dispute buttresses the deliberative nature of the engagement that the Constitution creates. The principle of cooperative government reflects a particular model of democracy incorporated in the framework of decentralised government. A more traditional model of federalism is a purely competitive model of federalism in which sub-national governments compete with each other for highly valued citizens, and with the national government for policy-making prerogatives. With a principle of cooperative government and the institutions that it envisages, federalism operates differently. Sub-national governments are required to deliberate on areas where potential conflict may exist, include all affected decision-makers in the process of policy-making and limiting the use of courts in resolving remaining conflicts. These requirements serve to blunt the competitive nature of the traditional conception of the federalism. National and provincial intervention Despite the constitutional imperative of a deliberative and cooperative approach to intergovernmental relations, the Constitution ensures that provinces and local government are, within limits, subject to the monitoring and intervention powers of national and provincial government respectively. Monitoring is defined as the periodic oversight of a process, or the implementation of an activity with the purpose of determining to what extent the objectives within the organisation are achieved so that timely action may be taken to correct deficiencies that are detected. The monitoring role of provincial government over municipalities is outlined in section 139 of the Constitution and further complemented by various pieces of legislation. Provinces may monitor municipalities in the following ways: by determining whether a municipality meets its executive obligations in terms of legislation, and how well it performs those duties. Section 100 of the Constitution provides for national intervention and supervision of provincial administrators. The national executive authority may intervene in the activities of a province when a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation. The NCOP plays a major role in respect of intervention under section 100, where national intervention should be tabled in the provincial legislature as well as in the NCOP. Local government According to the Constitution, municipalities are no longer creatures of statute. The Constitution ensures the independence of municipalities. 38 However, this independence is not absolute. As Steytler and de Visser aptly put it local government autonomy remains relative. 39 Previously, provincial government largely determined the 35 Section 76(1)(d) of the Constitution. 36 Section 41(3) of the Constitution. 37 Chapter 3 of the Constitution. 38 Section 151(4) of the Constitution. 39 Steytler and de Visser, 2006: 22-1.

9 7. FEDERALISM powers of local authorities. 40 Municipalities were in essence on the lowest rung of the governmental hierarchy. 41 Now, however, the constitutional text unambiguously states that the national and provincial governments may not impede a municipality s right to execute its constitutional functions. 42 The sphere of autonomy of local government thus depends upon an understanding of its functions according to the Constitution. The Constitution provides that the objects of local government are five-fold: a) To provide democratic and accountable government for local communities; b) To ensure the provision of services to communities in a sustainable manner; c) To promote social and economic development; d) To promote a safe and healthy environment; and e) To encourage the involvement of communities and community organisations in the matters of local government. 43 The first and last of these objectives appears to be concerned with the development of both representative and participatory democracy at local government level. The other three objectives give expression to a mandate on the part of local government that requires the provision of services to people and a contribution towards their welfare. This could be considered to articulate a developmental leitmotif which centers on municipal services. 44 A municipal service is legislatively defined as a service that a municipality in terms of its powers and functions provides for the benefit of the local community irrespective of whether fees, tariffs are levied. 45 This definition stresses that a municipal service is not a service aimed at the internal functioning of the municipality but focused upon the community. 46 The concept of municipal services is further refined by the areas of both concurrent and exclusive competence of local government outlined in the Constitution. Concurrent competences include such matters as air pollution, building regulations, child-care facilities and local tourism. Exclusive competences include beaches and amusement facilities, local amenities, municipal roads and refuse removal. Unfortunately, there is some lack of clarity on the exact functions of local government specifically given the very broadly worded areas of concurrent competence between local, provincial and national government in the Constitution. 47 There has also been a concern about a mismatch between the goal of developmental local government and the allocated powers of local government. 48 The concept of a municipal service, from the Schedules, is also rather broad and all-encompassing. It has been argued, however, that the scope of the obligation placed upon local government limits the broadness of what it is required to do in relation to these services. 49 The argument is based upon the language in two provisions: section 139 (5) of the Constitution provides that provincial government may intervene in the affairs of a municipality if it fails to deliver on its obligation to provide basic services. 50 This narrows the scope of services somewhat, restricting services to basic services. Section 227(1)(a) of the Constitution also explicitly recognises that local government is entitled to equitable share for the explicit purpose of providing basic services. Whilst municipalities may have wide competences, their main hard obligations are to provide basic services. The Municipal Systems Act defines basic municipal services as a service that is necessary to ensure an acceptable and reasonable quality of life, and if not provided would endanger public health, safety or the environment. 51 The second part of the definition is interesting - it may allow for a broader interpretation that goes beyond narrow bread and butter issues. 52 The obligations to provide such services are strongly connected to the socio-economic rights in the South African constitution (dealt with in Chapter 3 of this report) though they may go beyond those 40 CDA Boerdery (Edms) Bpk v Nelson Mandela Metropolitan Municipality 2007 (4) SA 276 (SCA) para CDA Boerdery para Section 151(4) of the Constitution. 43 Section 152 of the Constitution. 44 Steytler and de Visser, 2006: Section 1(1) of the Municipal Systems Act. 46 Steytler and de Visser, 2006: Part B of Schedule 4 of the Constitution. 48 Steytler and de Visser, 2006: Steytler and de Visser, 2006: Section 139(5) of the Constitution. 51 Section 1 of the Municipal Systems Act. 52 Steytler and de Visser, 2006:

10 ASSESSING THE PERFORMANCE OF SOUTH AFRICA S CONSTITUTION rights too and include matters such as the right to receive electricity from the municipality which is not expressly recognised in the bill of rights. The Constitutional Court has confirmed the notion that the provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government. The central mandate of local government is to develop a service delivery capacity in order to meet the basic needs of all inhabitants of South Africa, irrespective of whether or not they have a contractual relationship with the relevant public service provider. 53 Fiscal federalism The concentration of legislative and executive power is buttressed by the vesting of the revenue raising power mostly in the national government. Drawing on constitutional principles XVI to XXV, the Constitution assigns various expenditure functions and revenue-raising powers to the three levels of government. Despite the vagueness of the assignment, it is nevertheless possible to discern a broad outline of the nature of decisionmaking responsibilities associated with each tier of government. The abstract standard set for all decision-making is that all relevant decisions should take into account national unity, provincial autonomy and cultural diversity and should be made at which level this can be done most effectively. 54 Despite this, the fiscal arrangements in the Constitution were designed to leave as much of the Apartheid era s centralised powers intact. In other words, the revenue-raising function was left mostly in the hands of the national government. In light of this, it was deemed necessary to include in the Constitution some form of revenue-sharing arrangement. Therefore, section 214(1) of the Constitution states that each province is entitled to an equitable share of the income collected by the national government. The term equitable share is not defined in the Constitution. The Constitution determines that the distribution must take into account a wide variety of criteria, including the national interest and the needs of the national government, the ability of provinces to perform their tasks, and the need to combat economic disparities within and among provinces. 55 It has been suggested that this equitable share involves three modalities: percentages of nationally collected individual income taxes, value added tax or other sales tax, and fuel levy; transfer duties on property situated within a province; and other conditional or unconditional allocations out of national revenue. 56 The provinces are left with little real autonomy financially. While section 228 of the Constitution enables provincial legislatures to raise revenues through duties, levies, user charges, and taxes, with specific exceptions of income taxes, value-added tax, and sales taxes, these may only be done with national parliamentary approval. Provincial administrations have, however, been granted exclusive powers to impose all forms of gaming taxes within their jurisdictions. Section 229 of the Constitution allows local governments to rely on property rates and various user charges. In addition, under section 227 of the Constitution, local governments in each provincial jurisdiction are entitled to an equitable allocation of national revenues. Section 220 of the Constitution created the Fiscal and Financial Commission (FFC). The role of the FFC is to be an independent and impartial statutory institution, accountable to the legislatures, with the objective of contributing towards the creation and maintenance of an effective, equitable and sustainable system of intergovernmental fiscal relations, rendering advice to legislatures regarding any financial and fiscal matter which has a bearing on intergovernmental fiscal relations. 57 Section 214 (2) of the Constitution sets out the normative criteria that should guide the operation of the FFC. These are the national interest; national debt; the objective needs and interests of the national government; the need to ensure that the provinces and municipalities are able to provide basic services and perform the functions allocated to them; developmental and other needs of provinces, and local government; economic disparities between provinces; and the obligations of provinces and municipalities established by national legislation. 53 Joseph v City of Johannesburg [2009] ZACC 30 para See Constitutional Principles 20 and Section 214 (1) and (2). 56 FFC, 1995: FFC, 1995: 5.

11 7. FEDERALISM The FFC was established as a check on the national executive s power over the financial resources of provinces. It has a constitutional mandate to make recommendations to Parliament and the provincial legislatures on matters affecting the share of revenue raised nationally that is allocated to the provinces and local government. These recommendations provide provinces with an analysis of the way in which the national government proposes to distribute revenue. The purpose of the FFC is therefore to offer independent and expert advice on the allocation of resources necessary in order for provincial and local governments to operate. In the role of interpreting the broad constitutional measure for an appropriate allocation, equitable share, the FFC plays a vital role in ensuring that provincial and local governments are equipped to formulate and execute policy that may fall within their jurisdiction, as well as implement policies of the national government. Quite simply, without adequate resources, these institutions are vulnerable to national government coercion. As for local government, municipalities have original powers to levy rates or raise taxes. 58 They are also entitled to an equitable share of tax revenue from the national government. 59 Both of these aspects are discussed in greater detail below in the thin and thick compliance sections. The inclusion in the Constitution of a distinct chapter that sets out the principles of cooperative government, the limited list of exclusive provincial powers, the extensive list of concurrent powers with strong national overrides, and the elaborate arrangements for group decision-making in the NCOP (where provinces are merely given a collective voice and no veto power) all demonstrate the reluctance on the part of the ANC to establish a fully federal system. 60 It is possible, perhaps likely, that the performance of the federal system established in the Constitution will reflect the reluctant stance of the ANC. This will be further discussed in the performance section of this report. Traditional leadership Traditional Leadership is something of an anomaly in a constitutional democracy. As Chaskalson P stated, In a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. 61 However, the nature of a negotiated settlement such as eventuated in the South African Constitution tends to lead to contradictory norms that are in perhaps continuous tension. Chaskalson P went on to explain that South Africa s cultural pluralism, has certain legal and cultural, but not necessarily governmental consequences. 62 This begs the question what governmental consequences are there due to the presence of traditional leaders in the structure of governance? The debate around traditional leadership harkens back to the constitution drafting process itself. The voice of traditional leadership during this process was the Inkatha Freedom Party and delegates from the homeland governments. The ANC itself also had its eye on courting the rural support base controlled by traditional leaders. However, because traditional leaders had no formal representatives in the Constitutional Assembly, their influence in the general constitutional system was muted. The Constitution essentially makes provision for traditional leadership but defers the details to the legislature. Section 211(1) of the Constitution states that the institution, status and role of traditional leadership are recognised, subject to the Constitution. Section 211(2) goes further and says a traditional authority may function, subject to legislation and custom. This section subordinates traditional authorities not just to the Constitution, but also to the authority of parliament through legislative regulation. Section 212(1) states that national legislation may provide a role for traditional leadership as an institution at local level on matters affecting local communities. It also provides the discretion to national and provincial parliaments to establish a house of traditional leaders and/or a council of traditional leaders. Thus unlike all other spheres of government, in the case of traditional leadership, there is no obligation on the state to recognise this level of government or vest it with any real power. This textual agnosticism allows parliament 58 Steytler and de Visser, 2006: Section 227(1) of the Constitution. 60 Murray and Simeon, 2011: Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of SA (4) SA 744 (cc), 1996 (10) BCLR 1253 (CC) para 195 (First Certification judgment) 62 First Certification Judgment para

12 ASSESSING THE PERFORMANCE OF SOUTH AFRICA S CONSTITUTION a wide space to decide on the exact structures through which to recognise traditional authorities, a matter that will be elaborated upon below Performance Thin compliance National and provincial government Since the coming into force of the final Constitution, all the provinces and municipalities have been established. The basic multi-governance structure is comprised of 9 provinces and 278 municipalities. Each province and municipality has a functioning executive and legislative arm (in the case of the municipalities these functions are combined into one institution the Municipal Councils). Each level of government has its own electoral process. Elections at national and provincial levels are held at the same time on a five-year cycle with municipal elections held two years later. The Constitution in section 41(2) requires that Parliament enact legislation that provides for structures and institutions to promote and facilitate intergovernmental relations and that establishes an intergovernmental dispute-resolution mechanism. In light of this requirement, the Intergovernmental Relations Framework Act was enacted, which was primarily intended to formalise the existence of structures and mechanisms that facilitate the constitutional demand for cooperative government. Section 4 of the IGRFA further elaborates on the purpose of the Act as being to provide within the principle of cooperative government a framework for the national government, provincial governments and local governments, and all organs of state within those governments, to facilitate coordination in the implementation of policy and legislation, including (a) coherent government; (b) effective provision of services; (c) monitoring implementation of policy and legislation; and (d) the realisation of national priorities. The Act established various institutions in order to meet this constitutional obligation. The highest in stature of these institutions is the President s Coordinating Council. The PPC was created to assist in enhancing relations and coordination between national and provincial governments. In addition, the PPC assists with the development of linkages between intergovernmental institutions which include the National Intergovernmental Forums; Premier s Intergovernmental Forums; Provincial Intergovernmental Forums; Inter-Provincial Forums; District Intergovernmental Forums, and; Inter-Municipality Forums. The PCC consists of the President, Deputy President, and various ministers whose portfolios involve the operation of provinces or local government. The purpose of the PCC is to address substantive issues pertaining to provincial government with the support of the Department for Co-operative Governance and Traditional Affairs. Additional institutions established for the purposes of promoting executive intergovernmental relations were the Committees of Ministers and Members of the Executive Councils (MINMEC). MINMECs were established for various important functions such as social development, local government, environmental affairs and tourism. The driving purpose behind the establishment of this apparatus is the creation of formal interactions between governmental departments with overlapping substantive jurisdiction at different levels of government in order that they appropriately coordinate their activities and resolve, or avoid, conflicts. Thin compliance with the thrust of co-operative governance thus appears to have been achieved. Local government Types of municipalities and their boundaries The Constitutional text requires that national legislation be passed that determines the criteria and procedures for determining municipal boundaries. 63 The Local Government: Municipal Demarcation Act 27 of 1998 was enacted for this purpose. It established the Municipal Demarcation Board ( Board ) which is the primary 63 Section 155(3)(b) of the Constitution.